Resolve Disputes/Lawsuits, Erlanger Law Firm

07/19/2019

FREE SPEECH/HATE SPEECH

There has been a documented rise in antisemetism and other hateful behavior, which includes hateful speech and expressions, across the U.S. and on the internet since the 2016 Presidential election. Specifically as to hateful words and expressions, to what extent can they be controlled by law?

The First Amendment to the U.S. Constitution protects freedom of speech and expressive actions. But even that protection has its limits. In its 1942 decision, Chaplinsky v. New Hampshire, the U.S. Supreme Court held that the freedom of speech is not absolute at all times and under all circumstances; there are certain narrow, limited classes of free speech which may be prohibited by law: obscene or profane speech, defamation, and insulting or fighting words "which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace." Several U.S. Supreme Court cases further limited the circumstances under which defamatory words and obscenity, for example pornographic films, could be banned or controlled by law.

In its 1992 decision, R.A.V. v. City of St. Paul, the U.S. Supreme Court held that even regulation of the unprotected categories may be unconstitutional. Specifically, the St. Paul municipal ordinance at issue in that case made it a crime to place on public or private property symbols or graffiti, including a burning cross or N**i sw****ka, which one knows or reasonably knows would arouse anger or alarm on the basis of the target's race, color, creed, religion, or gender. The ordinance thus made it a crime to engage in expressions which would be the equivalent of fighting words, that is causing the targets to be so offended and angry that they would breach the peace or fight back. The Court held that the ordinance was unconstitutional because it prohibited speech on an entire subject, rather than specific words or actions. In other words, specific expressions or acts may be prohibited but not speech of an entire class of ideas. The example the Court gave is that punishing Flag burning is okay in the context of prohibiting outdoor fires but punishing Flag burning simply because it dishonors the Flag would be unconstitutional.

An underlying message cannot be banned simply because it is offensive; the law may only prohibit speech and expression in a specific time, place and manner. There may be instances where words, in and of themselves are so offensive that incitement to action is immediate and inevitable; those words could be legitimately prohibited but not the ideas they express if the call to action is not immediate and inevitable.

State laws address hate conduct, rather than hate speech or expressions, directed at individuals. New York State, for example, makes it a violent felony offense to intentionally commit any of 51 separately listed crimes, covering violence, intimidation and property destruction, against an individual based on race, color, national origin, ancestry, gender, religion, religious practices, age, disability or sexual orientation (Penal Law 485.05). The only covered crime that touches on expression is aggravated harassment in the first degree (Penal Law 240.31), which makes it a Class E violent felony (no jail time, only probation for up to 4 years) to: with the intent to harass, annoy, threaten, or alarm, place a burning cross in public view or draw or display a N**i sw****ka or noose on any building or property without expression permission of the owner. This law would not run afoul of the U.S. Supreme Court decision in R.A.V. because it does not broadly ban expression of ideas, as with the owner's permission a noose or sw****ka could be displayed.

Having to put up with hateful speech and expressions is a cost of freedom. But we are not helpless. We must fight expressions of hateful ideas with other ideas that are far more powerful to overcome ignorance and self-interest: ideas that inform and persuade, rather than just impose restrictions on behavior. And for example, if a property owner allowed sw****kas to be painted all over a building, day and night protests in front of the building would surely enlighten the owner to do otherwise.

07/19/2019

MUELLER REPORT PART I

During his May 29 press conference, former Special Counsel Robert S. Mueller III, declined to add anything more than what was already in the "Report On The Investigation Into Russian Interference In The 2016 Presidential Election." Read the Report he said. Everyone has an opinion about the Report and its conclusions, but very, very few have read it to form an opinion based on anything other than what he or she has been fed by the media. Reading the entire Report is immensely time consuming so reviewing the Executive Summaries would be sufficient for most.

The "Executive Summary to Volume I" found Russian interference in the 2016 election. Initial interference was through the Internet Research Agency (IRA), funded by a Russian oligarch, which manipulated social media. At the same time the IRA focused on supporting Donald Trump, the Russian intelligence service GRU started to cyberhack Clinton campaign documents and dump them online and through WikiLeaks to damage HRC. The IRA social media campaign and GRU cyberhacking occurred as the same time as a series of contacts between Trump campaign officials and people with ties to the Russian government. The Russians clearly wanted Trump to win.

As to the Russians themselves, the Report concluded that IRA social media and GRU cyberhacking operations violated U.S. law. As to the Trump campaign, the Report concluded that while there were numerous links between Trump campaign officials and the Russian government, there was insufficient evidence to support criminal charges against Trump campaign officials. As to the cooperation of Trump campaign officials with the investigation, the Report concluded that several Trump campaign officials lied to Mueller's team and Congress about their interactions with the Russians.

Why was there insufficient evidence to support criminal charges against Trump campaign officials? The answer was not that there was no evidence, but rather, Mueller's team could not get its hands on existing evidence that might have supported criminal charges because:

(1) some individuals took the Fifth Amendment to avoid incriminating themselves and were judged ineligible for a grant of immunity (that would have allowed them to testify without fear of prosecution);

(2) Justice Department policies stopped the Team from seeking other witnesses and information;

(3) some information was covered by legal privilege so the Team could not review it;

(4) some individuals, who testified or agreed to be interviewed, provided false or incomplete information;

(5) the Team had limited ability to access relevant evidence from overseas witnesses and documents; and

(6) The Team learned that individuals who were interviewed and whose actions were investigated, including members of the Trump campaign, deleted communications or used encryption software that rendered the communications inaccessible.

The Report concluded that given the six above "identified gaps," investigators could not rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report."

Based on a reading of at least the Executive Summary Part I, it is deliberately false to state that Trump campaign officials were exonerated or they did not conspire or coordinate with the Russian government. The only fair conclusion that can be reached is that because there was so much evidence that the Mueller Team could not get its hands on, there can be no conclusion whether Trump campaign officials criminally conspired or coordinated with the Russians.

12/22/2016

This video, using humor, debunks the myth about the McDonald's "coffee spill" lawsuit, the one that is always falsely portrayed and manipulated as the poster child for out-of-control jury verdicts and civil tort system.

The world's knowledge is there on the internet. If there is something you feel strongly about, ask questions, analyze. If a little voice inside you says an answer is wrong or incomplete, be fearless, ask more questions until you are satisfied. This is the only way that one can avoid manipulation and thought control by others. Thought control is the slippery slope to a Putin's Russia or Hitler's Germany where nobody is or was safe, regardless of position, money, race, or religion.

08/15/2016

Senate Republicans are actually getting away with blatantly violating their constitutional duty to advise the President on his Supreme Court nominee, Merrick Garland. Doing nothing is not advice. What kind of country do we live in where we stay silent about this?.

06/16/2016

Thanks to my colleagues for nominating me as a SuperLawyer, New York Metro, for the very first time in 2006 as a "General Litigator" and every year since 2009 as a Plaintiff's Personal Injury Lawyer, link: http://profiles.superlawyers.com/new-york-metro/new-york/lawyer/robert-k-erlanger/e700ef16-266c-4e64-828d-bf738b0db8a0.html

Robert Erlanger is one of the top rated Personal Injury attorneys in New York, NY. He has met the stringent Super Lawyers selection criteria.

06/13/2016

ORLANDO AND ASSAULT WEAPONS

In 2008, in the case of District of Columbia v. Heller, the U.S. Supreme Court reaffirmed that the Second Amendment to the U.S. Constitution "guarantees the individual right to possess and carry weapons in case of confrontation." The right enables individuals to defend themselves. But the Court also reaffirmed that the right is limited. The Second Amendment does NOT allow individuals to possess and carry weapons "for any sort of confrontation," including an unlawful one, or to possess and carry concealed, dangerous or unusual weapons.

It would be absurd to even argue that anyone needs an AR-15 style assault rifle to defend his or herself in America. In 1994, federal law banned assault weapons but Congress failed to renew it and it expired 10 years later. Only six states - CA, CT, MA MD, NJ, NY - and the District of Columbia ban assault weapons. But there is nothing from stopping individual states from doing so, regardless of Congressional inaction.

So far, the citizens of those states suffering mass murders by assault weapons have determined that a certain amount of murders are acceptable to continue to allow individuals to possess assault weapons (which are unnecessary for defense under any circumstances). And other states run the risk that they are next in line. Failure to ban assault weapons makes it even easier to smuggle them into the few states where they are banned.

As many have said during the last few days, it is now time for us to define who we are as a nation.

05/25/2016

CONGRESSIONAL FAILURE TO ACT ON U.S. SUPREME COURT NOMINEE

“Article II, section 2, provides, “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the U.S. supreme Court..” This means the President shall nominate during his four year term U.S. Supreme Court Justices, whose appointment (not nomination) is subject to the advice and consent of the Senate ... Does this mean each President must violate the Constitution by not appointing a single federal judge during his last year in Office?”

What does the Senate’s blocking of Merrick Garland’s nomination to the Supreme Court mean for the Constitutional functions of our government branches? Read more in our latest blog post and let us know what you think about the issue.

http://ow.ly/Lk8r300A0uV

U.S. Supreme Court Justice Nomination The Constitution of the United States was “ordained and established” by “We the People,” not by a particular...

03/18/2016

Lawyer’s Fees, How do You Know You’re Getting What You Are Paying For?

There are three primary arrangements to cover attorneys’ fees, with variations on each. Contingency fees are only recoverable upon successful ending of the dispute or lawsuit. Fees by the task are fixed amounts for each task or job performed. Hourly fees are a set amount for each hour worked, typically with 0.1 hr. the minimum billable time.

A fixed fee, for example, would be $7,5000 for a New York liquor license or $4,000 to process certain immigration applications. Even if you would like to hire the first attorney you go to, it is always a good idea to speak to other attorneys in the practice area to see what they charge for the same service. You can then made an informed decision.

The hourly billing arrangement is ripe for fudging and abuse. First, you need to figure out whether the hourly rate is reasonable; like with the fixed fee arrangement, you can find that out by speaking with other lawyers in the same practice area. The more experienced the lawyer or the larger the firm, the higher hourly the hourly rate. With the more experienced lawyer, you should be getting more bang for the dollar.

Second, with hourly fees, the lawyer will almost always ask for an up front retainer to start his or her work, particularly if you are not a current client. In states like New York, non-refundable retainers are not allowed. So, for example, if you pay your lawyer a $5,000 retainer to start a lawsuit, but after $3,000 of billable work the case settles, the lawyer is required to return $2,000. But don’t be surprised if the hours worked balloon to account for the entire $5,000 retainer. You wouldn’t know whether $5,000 worth of work was done unless you consulted with another lawyer.

Third, with hourly fees, how do you know that the work you are billed for was actually done or the amount of hours billed is the time that was put into the work. If you’re dealing with a large firm, don’t accept double billing, that is, two attorneys doing the same work on the same matter. You should demand that the hourly worked be billed to the 0.1 of an hour, and that each task performed be expressly stated. If it looks like too much time was billed for a telephone call or a meeting, or anything like drafting a document or doing legal research, ask questions. If an attorney has a specialty in a particular area of law, no or little legal research may need to be done. Also ask that travel time not be billed or billed at 1/2 rate (sometimes lawyers may be doing actual work if traveling but the concentration level is not the same as at the office). At the end of the day, you will never know that the bill is reasonable unless you consult with another lawyer in the same practice area.

Don’t be shy about asking specific fee/billing questions when hiring a lawyer and when receiving your lawyer’s invoice, if necessary. It’s your right and your money. Good luck.